Germany: OLG Nuremberg on the unjustified accusation of abuse of rights in the case of a warning letter

A recent decision by the Higher Regional Court of Nuremberg dated 18 July 2023 (Ref.: 3 U 1092/23) deals with a formal warning of a competitor that was wrongly classified as an abuse of rights in relation to advertising for dietary supplements.

The defendant in this proceeding sells, amongst other, dietary supplements for eye and joint health through a website where the defendant advertised the positive effects of these products. The authorised representative of the plaintiff issued a warning to the defendant on behalf of the plaintiff and enclosed a pre-formulated cease-and-desist declaration in which the defendant undertook to pay a contractual penalty for each case of infringement, excluding the objection of natural unity of action, and in the case of continuous acts, such as an infringement on the internet, each commenced week of infringement was to be deemed a single infringement. The managing director of the plaintiff stated in an affidavit that the authorised representative should independently identify and, if necessary, issue warnings for any infringements of competition law for the food supplements selected by the defendant. The Regional Court of Nuremberg rejected the request for a preliminary injunction and stated that the warning was inadmissible and an abuse of rights pursuant to Section 8c para. 1 UWG.

In its decision of 18 July 2023, the Higher Regional Court of Nuremberg came to the conclusion that the application for a preliminary injunction was not an abuse of rights after an overall assessment of the relevant criteria and could not be dismissed pursuant to Section 8c UWG. An abuse of rights can be assumed if the plaintiff is guided by irrelevant considerations when asserting the claim for injunctive relief. Indications can be found in the non-exhaustive catalogue of standard examples of abusive conduct in Section 8c para. 2 UWG. If the requirements of Section 8c para. 2 UWG are met, an overall assessment of all individual circumstances is still necessary. However, in the present case, an abuse of rights could not be assumed in accordance with Section 8c para. 2 No. 1 UWG, as the authorised representative of the plaintiff had not pursued the warning on their own initiative, but had been commissioned by the plaintiff. In the present case, Section 8c para. 2 no. 5 UWG was not applicable, as the required declaration to cease and desist related to the specific infringement in question. The fact that the defendant waived the objection of natural unity of action and that, in the case of continuous acts, each week should be considered a single infringement, does not concern the scope of the injunction, but the legal consequence resulting from the infringement. There is also no agreement or demand for excessive contractual penalties pursuant to Section 8c para. 2 No. 4 UWG. According to the wording of Section 8c para. 2 No. 4 UWG, a single obviously excessive contractual penalty cannot indicate an abuse of rights, as this requires (several) "obviously excessive contractual penalties". The waiver of the objection of natural unity of action is therefore not an abuse of rights because the threshold for the obviousness of an excessive contractual penalty, which is also required by Section 8c para. 2 No. 4 UWG, is not surpassed. In the present case, it was a matter of an individual agreement according to which several infringements were not to be combined into one unit. The Senate was able to remain undecided as to whether the splitting of a continuous act into individual infringements per weekly unit indicated an abuse of rights, as the plaintiff in the injunction could only be accused of a single case of demanding an excessive contractual penalty, which, however, did not constitute an indication of an abuse of rights. The amount in dispute proposed in the application for a preliminary injunction is also not an abuse of rights pursuant to Section 8c para. 2 No. 1 UWG.

This is important | To Do: The decision shows once again that the circumstances of the individual case are decisive when assessing whether there is an abuse of rights. Quite rightly, the requirements for the assumption of an abuse of rights are rather high, because after all, warnings under fair competition law are always about enforcing compliance with the rules of fair trading law in the public interest. The ruling is also of relevance as it shows that an overall assessment of the individual circumstances is still necessary in order to be able to demonstrate an abuse of rights, even if an isolated example of a rule under Section 8c para. 2 UWG is given.